Kennedy v. United States

• Decision Date: 30 November 2015
• Docket Number: No. 13-165C,13-165C
• Parties: JASON CARL KENNEDY, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

JASON CARL KENNEDY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 13-165C

United States Court of Federal Claims

November 30, 2015

Military Pay; NROTC Scholarship; 10 U.S.C. §§ 2005, 2107; 37 U.S.C. § 209; Motion to Dismiss; Subject Matter Jurisdiction; Statute of Limitations; Mootness; Justiciability; Cross-Motions for Judgment on the Administrative Record; Final Agency Action Subject to Judicial Review

Jason C. Kennedy, Denver, CO, pro se.

William J. Grimaldi, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Plaintiff Jason Carl Kennedy, proceeding pro se,¹ contends that he was improperly disenrolled from Officer Candidate School ("OCS") and the Naval Reserve Officers Training Corps ("NROTC"), depriving him of the scholarship benefits to which he was entitled pursuant to the financial assistance program administered by the United States Department of the Navy ("Navy"). Defendant moves to dismiss plaintiff's claims, and the parties cross-move for judgment on the administrative record. For the reasons set forth below, the court grants in part and denies in part defendant's motion to dismiss, denies plaintiff's motion for judgment on the administrative record, and grants defendant's cross-motion for judgment on the administrative record.

I. BACKGROUND

A. Factual History

Upon enrolling at The George Washington University ("GWU") as an undergraduate in August 2003, plaintiff joined the NROTC.² AR 174-89, 408. During the spring semester of his sophomore year, plaintiff was awarded an NROTC scholarship. Id. at 400-04. To formally receive the scholarship, plaintiff executed, on March 16, 2005, an "Enlistment/Reenlistment Document" ("enlistment agreement"), attached to which was "Annex A," an "NROTC Scholarship Service Agreement" ("scholarship agreement"). Id.

The enlistment agreement indicated that plaintiff was enlisting in the United States Marine Corps ("Marines Corps") Reserve for eight years at the E-1 pay grade, effective March 16, 2005. Id. at 400. It further indicated that "additional details" of plaintiff's enlistment were included in the appended scholarship agreement. Id. The scholarship agreement, which does not bear plaintiff's signature,³ provided, in relevant part:

I. SERVICE OBLIGATIONS INCURRED

A. By Title 10, United States Code Section 2107, I hereby acknowledge that to be eligible for appointment as a midshipman and for participation in the financial assistance program . . . I must enlist in the U.S. Naval Reserve for the following:

1. If entering the NROTC Program from civilian life, I will enlist in the U.S. Naval Reserve for eight years.

. . . .

B. As a condition of my appointment as a midshipman, I agree that:

1. I will major in an academic subject leading to a baccalaureate degree approved by the commanding officer of the NROTC Unit; and2. I will satisfactorily complete the NROTC curriculum and military requirements as required; and

3. Upon completion of all requirements, and at the discretion of the Secretary of the Navy, I will accept an appointment, if offered, as a commissioned officer in the U.S. Naval Reserve or the U.S. Marine Corps Reserve and serve at least eight years as a Reserve Officer with an active duty obligation for at least four years. After one year of active duty service, I may request to augment to a regular U.S. Navy or U.S. Marine Corps commission. . . .

4. If I do not complete the four-year course of instruction, or if I complete the course but decline to accept a commission when offered, I may be ordered to active duty by the Secretary of the Navy to serve in an enlisted status for four years, or for such lesser period as the Secretary may prescribe. . . .

"I certify that I fully understand that I am entitled to NROTC Scholarship benefits for only 3 years."

[II.]

A. As a condition of receiving advanced educational assistance, I further agree that:

1. If I fail to complete educational requirements identified in paragraphs I.B1-2, or for reasons of misconduct I am disenrolled, then, at the discretion of the Secretary of the Navy, I will either serve on active duty as specified in paragraph I.B.4, or reimburse the United States for the educational costs expended on my behalf. Misconduct is defined as serious breach of discipline (theft, drug usage, or other serious crime or a matter of serious moral turpitude).

. . . .

B. I understand educational assistance to mean all costs related to tuition, fees, and laboratory expenses paid by the government either directly to me or in my behalf.

. . . .

IV. OTHER TERMS AND CONDITIONS (ALL APPLICANTS)

A. I understand the Secretary of the Navy may release me from my obligation under this agreement. I may be separated from the training program at any time if, in the opinion of the Secretary, the interests of the Navy would thereby be served.

B. I understand to continue my eligibility in the NROTC Program I must remain in good standing at the college in which I am enrolled. As well, I must remain in good standing with the NROTC Unit.

Id. at 403-04. Plaintiff ultimately received scholarship payments for the spring 2005 semester, the fall 2005 semester, and the spring 2006 semester, for a total of $50,675. Id. at 405-07.

During the summer of 2005, plaintiff was abused by a family member. Id. at 206. The abuse continued after he returned to GWU and through the remainder of the year. Id. at 291, 409. In November 2005, plaintiff was seen at the GWU hospital emergency room and diagnosed with an adjustment disorder. Id. at 195, 201. He subsequently underwent counseling, id. at 211, and when plaintiff terminated the counseling in February 2006, his psychologist indicated that he continued to suffer from an adjustment disorder, id. at 206.

Plaintiff entered Marine Corps OCS in May 2006. Id. at 133, 357. During plaintiff's third week at OCS, his platoon commander, Captain Will Fenwick, prepared a Command Evaluation that provided the following:

Emotionally unstable. SNC lost control of his emotions in front of his platoon. SNC lost control of his emotions in front of his Platoon Commander on two occasions and was on the verge of losing control in front of the Company PTI. SNC has personal issues he is dealing with and has sought counsel from the chaplain at least 5 different times. SNC has leadership potential, but needs to resolve his personal issues in a satisfactory manner and return to OCS once they are resolved.

Id. at 359. Captain Fenwick recommended that plaintiff be disenrolled from OCS, but allowed to reapply at a later date. Id. In response to this evaluation, plaintiff wrote:

This candidate [recognizes] that he has lost control of his emotions twice. Further, he [recognizes] that such conduct is absolutely unacceptable. This candidate is dedicated to the Corps. Further, in all other regards this candidate has performed well. Yesterday, after talking to the [chaplain,] he refocused his priorities and has never been more [committed] to the Corps and OCS as he is now. The candidate believes that he can [successfully complete] OCS without further incident.

Id.

Plaintiff's company and battalion commanders subsequently provided their recommendations on a Commanders Endorsement; both recommended that plaintiff be disenrolled from OCS and not permitted to reapply. Id. at 360. The company commander wrote:

SNC is emotionally unstable and not capable of handling himself in front of Marines. He is undoubtably a good kid, but breaks down in tears when faced with stress or responsibility. He may be capable of returning to OCS at a later date if he could pull himself together. However, I [shudder] to think about how he would perform in combat? [sic] It is just too big a chance to take with the lives of our Marines! SNC is emotionally unfit to lead & should not return.

Id. The battalion commander wrote: "Too many personal issues. Mental health issues that make the staff concerned about his well-being & potential. I agree-I cannot believe this is reparable." Id.

A Commanding Officer's Board was convened on June 22, 2006. Id. at 358. Plaintiff advised the commanding officer, Colonel Robert Chase, that his problems were with his family, and not OCS, and that he did not know whether the problems could be fixed. Id. Based on this information, Colonel Chase told plaintiff that he would disenroll him from OCS and not allow him to reapply. Id. That same day, plaintiff was disenrolled from OCS for "unsat character," with a recommendation that he not reapply. Id. at 357-58.

Immediately after his disenrollment from OCS, plaintiff was ordered to speak with a mental health professional. Id. at 291. Plaintiff complied, and during a five-to-ten minute conversation, informed the mental health professional of his adjustment disorder diagnosis and the underlying circumstances. Id. The mental health professional stated that he was not "worried about" plaintiff. Id.

On August 7, 2006, the commanding officer of the GWU NROTC Unit advised plaintiff that a Performance Review Board would be convened on August 17, 2006, to "evaluate [plaintiff's] suitability for commissioning." Id. at 418. The commanding officer further indicated that plaintiff had the right to, among other things, "appear before the board," and that attendance was "strongly recommended, but not mandatory." Id. And, the commanding officer explained that the board could recommend plaintiff's "[d]isenrollment from the NROTC Program." Id.

Captain Bradley W. Ward, the Marine Officer Instructor for the GWU NROTC Unit and plaintiff's advisor, sent a memorandum to the Performance Review Board regarding plaintiff on August 8, 2006. Id. at 420. Captain Ward noted that plaintiff had "displayed on several occasions some propensity for emotional instability," but that "the situations in question were always mitigated and [plaintiff] demonstrated exceptional aptitude and potential otherwise." Id. He further explained that plaintiff was "disenrolled from OCS without the possibility of reapplying" ...